I have been “mistaken,” “misled,” “misrepresented,” and been “unaccountably in error,”
and am sorry if you have been offended

Saturday, April 18, 2009

Defendant Tells Judge Where to Blow His Toke

A 20 year-old former tobishoku—a skilled construction worker somewhat similar to a “spiderman”—was brought before the Gifu District Court on charges of theft. The defendant was alleged to have gone on a two-day shoplifting spree, taking 229 manga comic books worth roughly 110,000 yen in order to repay loans and finance a marijuana habit. When the judge* asked, “Do you understand that marijuana is bad for your health?”, the defendant replied, “I don’t think it’s bad for my health. I did research on the Internet, and it said that marijuana was less harmful than tobacco and alcohol.” The judge responded to this in a voice that was audible to the three people who had come to watch the proceedings, “You’re being deceived, because you’re a fool (ばか).”

Leaving aside for the moment the undeniable fact that the defendant was a fool for challenging the judge, it is safe to say on the basis of 100% hearsay evidence—that marijuana is less harmful to the health of the user than tobacco and less harmful to everyone than alcohol—you rarely if ever hear of a marijuana-fueled shooting binge or a driver high on marijuana piling into a row of schoolchildren. I suspect that the Japanese media is aware that the defendant’s logic cannot be totally denied. It’s a debate that will start in earnest here in future years, as the U.S. and Western Europe gradually move towards further decriminalization. But I digress.

Asahi, Yomiuri, and Sankei have seized on this incident, considering the matter noteworthy enough to post on their websites, unusual treatment for such a trivial case not involving policemen, prosecutors, judges, other public servants, and educators. For the moment, they appear to be focusing on the fact that the judge called the defendant a fool, presumably a breach of decorum and detrimental to the court’s dignity. As evidence of this interpretation, unusually for a criminal case, the name of the defendant—not a minor—(as well as the judge’s) have been withheld from publication.

However, if the language went beyond the narrow, acceptable boundaries of behavior that the Japanese media demands of the judiciary, the sentiment itself was not unexpected, coming as it did in a criminal case. Various memoirs by ex-judges as well as more impersonal reports indicate that the judiciary shares a common belief that the role of the courts goes beyond upholding the law itself to restoring and improving the moral rectitude of society at large and specifically criminal miscreants. Thus, it is not that unusual for judges during the course of proceedings to admonish, chastise, or even commiserate with defendants for their admitted behavior and/or their lack/expressions/of remorse. This behavior reaches its peak in a guilty verdict and the concomitant sentencing, where the judge apparently feels a professional obligation to offer what amounts to a lengthy sermon to the understandably pensive defender. The verdict itself is typically studded with judgmental, exhortatory, and emotive language, such as “coldblooded” and “utterly depraved” nature of the crime and the “utterly depraved”, as well as the ubiquitous reference to the defendant’s sense of remorse or lack thereof.

It is important in this context to note that the degree of remorse expressed by the defendant through the course of the proceedings can materially and explicitly affect the severity of the eventual sentence. Thus, the comportment of the defendant with regard to this point may be more the outcome of self-interested calculations than any genuine change of heart. This process is not limited to the judiciary, but extends to the prosecutors—remember the Public Prosecutors Office’s near unlimited discretion over the decision to pursue a case in court—and the police, where intimations of severe sentences have apparently led on rare occasions to suspects confessing to crimes that they did not actually commit.

All the more astounding then, to find the defendant in this case ambushing the judge on what was only a little more than a rhetorical question (as a clever schoolboy would have ambushed his schoolmaster upon being told that he would suffer brain damage if he continued to indulge himself). His rash action certainly did not help him in the criminal proceedings, but it did get him case (if not his name) in the papers.

* In Japan, there are no juries. Minor cases are presided over by a single judge; more serious cases require three judges, with a majority required to convict. Starting this July, laypersons will join the judge of judges in sitting on cases and deciding the verdict and sentence if required.

8 comments:

Anonymous
said...

Marijuana opponents in Japan have the advantage that marijuana is illegal, and in a non-Protestant, mostly-Confucian society, where there is no logic that state decree and morals could somehow be different, illegal means it must be immoral and thus bad for you.

I don't see any of the overwhelming scientific and historical evidence of marijuana's safety budging Japan's conservative ruling class. They may be "secular" in terms of religion, but their moral convictions are based on the current state of affairs. Marijuana is illegal because it's illegal.

So more tolerance to marijuana in Japan represents a value change and not a health problem. This is the reason why decriminalization is a slow process in the US, as well, but I don't see Japan budging for a half-century at least — no matter how much scientific evidence makes a rational case.

Marxy: To the contrary, I can think of many examples where morals have trumped the law. The near-total non-enforcement of the Minor Offenses Act—violated 24/7 by gravure idols and more extravagant displayers of female pulchritude—is one example. The court’s decades-long bending of the letter and original intents of the Interest Rate Restriction Act and the real estate rent laws are also good examples. Drugs on the other hand have been strongly associated with moral decrepitude, personal and family ruin, and crime; and marijuana has not yet been able to escape from this guilt by association with more powerful psychotropic drugs. (Some of this is attributable to the illegality and hence the greater expense of maintaining drug habits, but I’ll leave that issue for another occasion.) However, recent cases coming to the public’s attention suggests that there is greater awareness of the actual properties of marijuana and that more people in otherwise respectable circumstances (not this boy) are experimenting with it.

I believe that the first breakthrough will come when medical use becomes prevalent in the (rest of) West. For if anything is more Japanese than our deference to authority—which can sometimes be exaggerated—it’s ourwe-gotta-have-it-too mentality. What follows then—and to some extent will parallels the decriminalization of medical marijuana—is that the Public Prosecutors Office will stop prosecuting simple possession under an ever-rising minimum threshold. There will be some backtracking when it is associated with other more heinous crimes, but this process, which I will call “de-enforcement” is something that we have seen time and time again in Japanese history, of which the Minor Offenses Act, and gambling and obscenity in the Criminal Code are prime examples.

The near-total non-enforcement of the Minor Offenses Act—violated 24/7 by gravure idols and more extravagant displayers of female pulchritudeThis is a very good counter-example. I guess I think two things are going on: citizens are "scared" of marijuana and believe it must be evil because it's illegal and authorities say it is dangerous. Case closed. Conservatives in power meanwhile are basically allowed to selectively enforce laws — some even put on the books by "feminists," Americans, and other liberal forces — to fit their agenda and ideas on a national moral order.

Conservatives fought tooth and nail back in the olden days to keep prostitution legal, as it was not only one of "Japan's beautiful customs" but also that it protected "virtuous" women from the libido of men. Feminists, Christians, and women's groups won the day and the law changed. The conservatives, realizing that this was their country and they could do whatever they wanted as long as things looked like they changed in the foreground, decided to ignore the prosecution of prostitution as it stayed quietly in "turkish baths" etc. So just like always, conservatives actually win the day, while liberals think they have accomplished something. Nice try, women's groups. Viagra vs. The Pill also bears this out, basically.

But with marijuana, the conservatives not only have the power to enforce, but can scream more loudly about its danger than any rational advocate. (And even suggesting that marijuana is not harmful in Japan means you must be a user, no? A least, a lot of people are paranoid that they will be labeled as such.)

So you have the situation, not unique to Japan, where the ruling power is totally free to undemocratically set policy with selective enforcement of laws. So yes, (working class) women can be continued to bought and sold, and photographed lewdly as children for the pleasure of the nation's men, but being in the same room as a bong will get everyone involved blacklisted for life and kicked out of college. (Roy from Mutantfrog pointed out recently that the head of the Metropolitan Police did not even know what a "blunt" (pot rolled into a cigar casing) was and yet this guy is nominally devoting resources to combatting this "epidemic." It's like Mori Ogai trying to fight Beri Beri as a disease, not a vitamin deficiency.)

There is a War on Marijuana at the moment, and it seems like a desperate attempt for the increasing-irrelevant conservative moral order to try to whip some "sense" into these kids, who basically have abandoned all interest in long-standing ideas of Japanese organizational ethics by dropping out. Maybe youth will finally turn political when they realize that their lack of activism and voting is getting in the way of getting high.

Marxy: Take a look at the history of criminal prosecution regarding the Minor Offenses Act as well as the obscenity provisions of the main Criminal Code and come back and tell me if you still believe that you have identified “a very good counterexample” and why if you do. It may also be of interest to read the Prostitution Prevention Act, which defines prostitution “to have sexual intercourse [not “sexual relations”, a term that the accused availed himself of in a U.S. case] with an indefinite partner upon receiving or the promise of receiving considerations”. Soaplands apparently test the limits of this definition. Now I cannot vouch for the honesty of the soapland proprietors regarding their respect of the law, but nobody’s complaining, so what can the police do? Be careful though, Marxy, when consorting with minors, since the law has been tightened over the years in this respect (echoing Western trends!), resulting in many successful convictions of otherwise upright members of the “conservative” establishment by the members of the “conservative” establishment.

As for child pornography, it was outlawed in the late 90s; if you’re caught distributing it, you will be prosecuted. The DPJ has a legislative bill in the Diet that outlaws possession, so if the DPJ wins the election, that goes too.

These are verifiable facts and not-too-farfetched inferences. Though I have some thoughts about the rest of your comment—I do not see a “War on Marijuana”—they are somewhat speculative in nature, like your claims about the motives of the prosecutors, so I’ll reserve them until we are agreed on the facts and the less-ambiguous inferences to be derived from them.

In passing, let me mention that I have led a remarkably crime-free life (except for jaywalking) including illegal substances and that the time and effort to respond to comments such as yours continues to keep me off the streets. And for that, my children would likely thank you from the bottom of their hearts. (If they knew I was blogging, which I seriously doubt.)

“Less harmful” is not the same thing as “harmless”. Anyone who thinks deliberately inhaling smoke, fumes, carbon monoxide and other combustion by-products is “harmless” is indeed a “fool”. Marijuana may arguably be lower in cancer-causing chemicals than tobacco, but marijuana smokers inhale deeper and hold the smoke in their lungs longer. THC may arguably be less addictive than nicotine, but it can still be addictive - I have known people who became addicted to pot.

It is one thing to make the argument that there is something inherently wrong with a government policy that legalizes and taxes two addictive, mood-altering or behavior-altering substances while outlawing others of no greater or lesser risk to one’s physical or mental health. However, that argument will not be well-served by a mistaken argument that marijuana is “harmless”. It is not.

There may not be any great number of shootings or road accidents caused by pot smokers (although there have been accidents caused by high drivers and train engineers), but that is as likely to be because one of the effects of smoking pot for a lot of people is an intense disinterest in doing anything that involves moving (aside from eating...).

LB: You’re right. Like many things, such as alcohol, gambling, blogging and red meat, marijuana appears to be a good that, where legal, many people will consume in moderate amounts without obvious harm to themselves and/or others but a minority will overindulge themselves in to personal and public detriment. And to his credit, the unemployed 20-year-old also claimed only that marijuana was less harmful.

For some goods, societies distinguish between good goods and bad goods, and ban the latter. It is only recently that absinthe has been legalized in Europe and the United States. More often, society tries to identify degrees of goodness, or badness if you prefer, and extract a more or less proportionate charge to reward the goodness/offset the badness. Subsidies explicit and implicit for environment-friendly autos are one such endeavor. With marijuana, I suspect that Japan will follow where the rest of the West goes, allowing good (medicinal) marijuana while holding off on (recreational) marijuana. This will be followed in due course by the Public Prosecutors Office increasingly declining to prosecute first offenders, then casual users in general. I have no idea how quickly this is going to happen, nor whether it will eventually lead to total legalization. (See the rest of the West for instructions.)

Permitting medical marijuana would be good, there is more than enough evidence that marijuana has clear benefits for certain people - those undergoing chemo and those with glaucoma, for two examples. I have never understood US Federal policy which disallows medical marijuana because "marijuana is illegal". Private possession and use of morphine is also illegal, but you don't see the US government banning its use in hospitals - although they are far fussier about levels prescribed than, say, some other countries. I seem to recall many years ago there was somewhat of a feud between the US and (IIRC) Sweden as the latter country effectively gave doctors a free hand to prescribe morphine as they saw fit for terminally ill cancer patients - whatever level was needed to help the patient get through the day was fine. US position: they were promoting addiction. Swedish position: the patients are waiting to die, getting addicted is the least of their problems. As far as I know, the Swedish position did not result in a sudden increase in morphine abuse on the streets of Stockholm, but neither did they liberalize their laws regarding private use of the drug.

Personally, I don't think having the public prosecutors "turn a blind eye" is a positive. That is basically what happened in the US and, arguably, it made the problem worse. Once people realize they aren't going to be prosecuted just for having a joint on them, it removes that inhibition to smoking. Demand increases, folks see money to be made and dealing goes up. Dealing which is, still, illegal. Businessmen being businessmen, they quickly realize that profit margins are larger for harder drugs, and since they are breaking the law anyway....

I don't think pot use, in and of itself, is a gateway to hard drug use anymore than I think wine drinking is a gateway to sucking down Everclear jello shots - two different markets. But I do think "ignoring" pot use would, in the medium to long term, increase the number of dealers, who are going to try to make as much money as possible (it is not like drug dealing is a long-term career with a pension plan after all) and start pushing harder drugs in order to do that.

LB: A wholesale legalization of marijuana is probably better—or less worse, depending on your point of view—than the legal drift that I am suggesting. Under my scenario, it is quite possible, for instance, that the increased demand for marijuana will increase revenue for organized crime. (On the other hand, homegrown marijuana on window sills may become commonplace, crowding out illegal providers. I suspect that it will not be a neat, unilinear progression.) But these things tend not to happen in one fell swoop. A good example on the other side of the ledger is tobacco, which has been facing increasingly tighter sanctions (taxes, segregation, public ban), here in Japan as well, interestingly one or two steps behind some major states and municipalities in the United States that I am aware of.

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About Me

After graduation, Jun Okumura promptly entered what is now the Ministry of Economy, Trade and Industry and stayed in in its ecosystem most of his “adult” life. Along the way, he had pleasant stops in an assortment of Japanese quangos (Japangos?), overseas assignments and government agencies. After thirty years, though, it dawned on him that he had no aptitude whatsoever for administration and/or management. Armed with this epiphany, he went to the authorities and arranged an amicable separation; to come out, as it were. He is completely on his own IYKWIAS, but he and the METI folks remain “good friends.” He currently holds the titles of “visiting researcher” at the Meiji Institute for Global Affairs (no, that MIGA) and counselor at a risk analysis firm that dares not speak its name. This gives him plenty of time to blog or make money on his own. His bank account says that he does too much of the first, and insists that he do more of what he calls “intellectual odd jobs”. He wants to be paid to write fulltime, or better, talk—where the easy money is—but that distinction has largely escaped him. He really should not be referring to himself in the third person; he is not that famous.